Agency workers are set to
have better anti-discrimination rights after an Employment Tribunal awarded a
woman over £35,000 for disability discrimination and unfair dismissal in a case
funded by the Equality and Human Rights Commission.

The Tribunal heard that
agency worker Corinda Pegg had been dismissed after 44 weeks service due to
absences caused by depression. After a series of bereavements she was absent
from work for a week receiving mental health residential care. On her return to
work she was sometimes late and, when questioned by her manager, explained that
this was due to her disability.

Two months later, she was
admitted to hospital following a panic attack and, whilst receiving medical
care at home the following fortnight, she was told by phone that her employment
had been terminated because of poor attendance and punctuality.

Although she had
requested confidentiality, work emails revealed that her medical condition had
been openly discussed with a colleague. The data also indicated that
discussions about ending her employment had begun before requests for further
information about the reasons for her absence from work.

The case went to the
Employment Appeal Tribunal on the legal question of whether equality law
protects agency workers from being discriminated against by an organisation
they are supplied to. The Judge said that, as Ms Pegg was under an obligation
to work for Camden Council, it was subject to a legal duty not to discriminate.
The compensation was awarded when the case returned for a full hearing to the
Employment Tribunal.

Commission deputy
director legal, Wendy Hewitt said:

"There was an urgent need to
clarify the legal status of agency workers who have been discriminated against,
given the increase in this type of working arrangement.

"This case clarifies that
agency workers are entitled to the same degree of protection from
discrimination at their place of work as permanent employees"

Court
of Appeal condemns treatment of autistic boy by Police

The Court of
Appeal in February dismissed an appeal by the Metropolitan police against a
finding that they had violated the human rights of a 16-year-old autistic boy,
saying that nothing could have justified the manner in which officers
restrained him at a swimming pool.

The Equality
and Human Rights Commission intervened in the case involving ZH, who also has
learning disabilities and epilepsy, to argue that the teenager's treatment by
the police had been inhuman and degrading and was so serious that it
contravened Article 3 of the European Convention. (1).

The Commission
also told the court that the boy's subsequent restraint in handcuffs and leg
irons before being locked up, alone, in a cage inside a police van constituted
an infringement of Article 5, which protects against the deprivation of
liberty(2).

The Court
endorsed the Commission's position that, although the police did not
intentionally breach his human rights, they had caused matters to escalate to a
point where he was restrained wholly inappropriately.

ZH's ordeal
happened when a group from his specialist day school had gone with care workers
for a familiarisation visit to a baths in Acton, London. ZH, who cannot
communicate by speech, broke away from the group and went to stand by the pool
staring into the water. After 30 minutes the manager called the police.

The officers
did not seek advice from ZH's carers - who knew a patient response was needed,
and caused him to jump into the pool by touching him. After he was pulled out,
five and then seven police officers restrained him before he was taken, still
soaking wet, to the police van. The restraint and detention lasted about 40
minutes.

ZH subsequently
experienced acute psychological suffering, including post traumatic stress and
an exacerbation of his epilepsy.

In the hearing
in the lower court the Metropolitan police officers were found to have
subjected ZH to unlawful disability discrimination, assault and false
imprisonment and to treatment that breached his rights protected by Articles 3,
5 and 8 (3) of the European Convention of Human Rights. The Judge awarded damages of £28,250,
including compensation for exacerbation of the boy's epilepsy and for
psychiatric damage.

"We
welcome the Court of Appeal's judgement in this case. Although the police
officers were acting in what they thought to be the best interests of ZH, they
made serious errors which led them to treat this vulnerable young man in a way
which caused him great distress and anguish. The court supported the view that
the threshold of Article 3 had been crossed on the particular facts of the
case.

"The
police deal with many vulnerable people and must make arrangements to ensure
that they make well-informed decisions on how and when to restrain them, to
avoid breaching their human rights obligations."

Tribunal hears how council manager was overlooked
for new role because of a 'racial divide'

Valdez v London Borough of Camden[2013] EqLR 298

UNION
chiefs have warned of a “damaging blot” on Camden Council’s equal rights record
after an employment tribunal upheld a manager’s claim of direct racial discrimination.

Fraser
Valdez, 31, took Camden Council to an employment tribunal arguing that he was
overlooked for a new role because of a racial divide in his department. The
tribunal found in favour of the environmental management officer.

Speaking
after the seven-day hearing, Mr Valdez said: “I always suspected that foul play occurred during the recruitment and
selection process. “All I wanted was equality of opportunity during the
recruitment and selection process, free from any racial prejudice.” He
added: “The last 16 months have been very
stressful and upsetting for me and a soul-destroying period of my life.”

Mr
Valdez, of dual nationality and “mixed race”, worked for the the Council for 15
years and was nominated for a prestigious Camden Council staff award in 2005. He
took the council to a tribunal after documents leaked by a whistleblower
revealed interview scores showing him to be an “outright winner” in the
selection process for a senior role in the environment department. But a white
colleague had been given the job after a selection team boosted his score, the
anonymous memo said.

The
documents had been sent to senior managers but had not been properly
investigated, Mr Valdez’s solicitor, Chris MacNaughton, said. He said Mr
Valdez’s case was built on evidence that the department had been “segregated”
into two teams based on race.

The
decision not to appoint him for the role appeared to be taken in order to
maintain the black-white balance. Mr MacNaughton added: “It is incredibly difficult for any individual to sustain a claim of
direct race discrimination when such foul play occurs behind closed doors,
where no records of discussions or decisions are made. “If it was not for the
whistleblower’s input, the racial discrimination may never have been discovered
and justice served.”

Tony
Warr, senior officer at GMB union, added:

“This case is a
clear indication that such prejudices are still regrettably present in the
workplace. It is shocking that such discrimination occurred in this case and it
is a damaging blot on Camden Council’s promoted ethos of equality of
opportunity and diversity.”

Withdrawal of job offer was direct disability
discrimination

White v University Hospitals of Leicester NHS Trust[2013] EqLR 296

The employer withdrew an offer of employment to a disabled person who
had recently had an operation. The Tribunal held that this was direct
disability discrimination because the employer would have made further
inquiries about the health status of a person with the same sickness absence
record who was also absent but did not qualify as disabled. The Tribunal also
found that the withdrawal of the offer was unfavourable treatment for a reason
relating to disability.

Age banter:
not a case of ‘only joking’

The tribunal in
this case found that the employer discriminated against Mr Nolan on the grounds
of age by making him redundant because he was close to retirement.

The tribunal drew an inference of age bias against Mr Nolan on the basis
of workplace age-related banter. This included colleagues changing the number
plate on his car from “OAB” to “OAP and nicknaming him “Yoda”, described by the
tribunal as “a small wizened character inStar
Warswho is several hundred years
old”. The fact that Mr Nolan said he found the age-related jokes humorous
rather than offensive was not relevant.

So the concept of ‘only joking’ (always a problematic phrase seeking to
limit something to one interpretation only) didn’t work here to prevent a
finding of age discrimination.

Not sex discrimination that male fire-fighters must
have short hair

The employer in this
tribunal case successfully defended a male fire-fighter’s sex discrimination
claim over its dress and appearance code that applied different rules to men
and women.

In general a policy
that requires employees to adopt a “conventional” or “uniform” appearance, but
has different rules from men and women (e.g. length of hair), is unlikely to be
sex discrimination under the Equality Act 2010.

European
Court of Human Rights finds Austrian adoption law discriminated against same
sex couples

The Grand
Chamber of the European Court of Human Rights (by 10 votes to 7) has found that
Austrian law discriminated against a same sex couple as it prevented them from
adopting jointly the biological child of one of them (what we would call a
second-parent adoption). The Court found a violation of Article 14
(anti-discrimination) in conjunction with Article 8 (respect for private and
family life) protection because this was less favourable treatment than if they
were an unmarried different sex couple who would have been permitted to adopt
together.

There may be
an argument to say that the Court was not breaking new ground here but the
Grand Chamber went out of its way to reaffirm the Judgment inSchalk & Kopf v.
Austria(2010) that same-sex couples
enjoy “family life” under Article 8 of the Convention.

European Court of Human Rights publishes updated
factsheets

Given all the controversy about human rights,
and particularly the work of the European Court of Human Rights, these case-lawfactsheets on the work of the Court are most welcome and have
been updated and extended. In addition, translations are available inFrench,Russian,German,Polish, and Turkish.

Weight stigma and health: whose problem is it?

CONFERENCE: ANNOUNCEMENT AND CALL FOR ABSTRACTS

A multidisciplinary conference
focussing on the subject of Weight Stigma and Health, featuring presentations
from both national and international keynote speakers is being held at
Birmingham University on May 16th. This conference will be of interest to
researchers, clinicians, and students from a wide range of disciplines,
including psychology, social sciences, medicine, public health, allied health
professions, sports and exercise science, education, media studies, law,
business and social policy.

The organisers are also accepting
abstracts for oral and/or poster presentations on subjects related to
weight-associated stigma, including, but not limited to, weight stigma in
health professionals, impact of weight stigma on health and wellbeing, stigma in
society, public policy implications, legal considerations pertaining to
weight-based discrimination, and interventions to reduce weight stigma.
Postgraduate students are especially encouraged to submit their work.

Abstract submission instructions
and the submission form can be found on the website at http://stigmaconference.com/abstract-submission. Please
indicate if you would also like to be considered to deliver an oral
presentation. Abstract submission deadline is 7th April 2013.

Attack
of the Clones: Supreme Court keeps its white male first eleven

Baroness Helena
Kennedyhas arguedthat judges
have a tendency to clone themselves when choosing successors. It is hard to
avoid that impression in the Supreme Court, which kept its white male first
eleven in place yesterday byappointing three new justices: Lord Justice
Hughes, Lord Justice Toulson and Lord Hodge: all White and very male! The sole
woman amongst 12 justices of our highest appeal court remains Lady Hale. There
are no black or Asian judges, nor have there ever been.

How did this happen? The answer is know one knows and won’t ever find
out. Around two thirds of the Supreme Court’s case load are public law and
human rights, decisions which affect millions of people. Yet appointments are
made by an opaque commissionconsisting of senior judges.

The stark fact is that the public has more say over the appointment of
X-Factor judges than over those who sit on country’s highest court. The only
Parliamentary “scrutiny” of is through
private consultation with the Lord Chancellor, currently Chris Grayling,but has never
exercised it as far as is known. There are no public committee hearings nor can
we read the minutes of selection commissions meetings.

Fulfilling Potential: Building a deeper
understanding of disability in the UK today

On
13 February 2013 the Department for Work and Pensions (DWP) published ‘Fulfilling Potential: Building a deeper
understanding of disability in the UK today’. The aims of this report are
described as:

·to provide an analysis
of the current evidence on disability in the UK to inform the development of
the next stage of work on Fulfilling Potential – the development of actions,
outcomes and indicators

·to inform public
understanding and prompt debate about disability and the issues faced by
disabled people

·to raise awareness,
drive a change in attitudes and support an increase in commitment to improving
the lives of disabled people in the UK today

The
main document is structured in two parts:

Part 1 provides analysis of the number of disabled people in the
UK as well as looking at the way disability develops over the life course and
at the fluctuating nature of disability.

Part 2 focuses on the lives of disabled people by looking at
trends in outcomes and barriers to taking part in different areas of life.

The
evidence is structured around the Fulfilling Potential: Next Steps themes of
early intervention; choice and control and inclusive communities.

Stop Learning Disability Hate Crime – Helpline

People
in England and Wales who have experienced, witnessed or know someone who is
experiencing Learning Disability Hate Crime can contact the Stop Learning
Disability Hate Crime helpline on 0808 802 1155 for support and information.
The helpline is open 24 hours a day, every day of the year. It is free to call
the Stop Learning Disability Hate Crime helpline from landlines and most
mobiles and the number will not show on a phone bill.

The
new service is funded by the Ministry of Justice Victim and Witness Fund.

The IRR publishes a
report on how racial violence is shaping the UK

Racial violence: facing
reality
by the Institute of Race Relations warns that attacks on
BME individuals are actually spreading to new areas of the country, as under
the impact of globalisation and austerity measures, populations swiftly change;
and points to the potential dangers in ‘decanting’ those affected by the
benefits cap to towns and cities which have little history of ‘diversity’.

Attacks
are often taking place in communities where BME families or workers are
isolated, where there are few support services and such experiences often go
unrecorded and become part of a repeat pattern.

The
tendency of statutory agencies to view racial violence through a prism of a
generalised ‘hate crime’ means that the conditions that give rise to racism are
not being understood and addressed and community safety strategies are not
being created: the emphasis having moved to simply criminalising individual
perpetrators.

The
report author, Jon Burnett, said:

‘The myth is that post-Stephen Lawrence, racial violence has been
magically dealt with. A few mechanical changes cannot deal with what is a huge
trend tied to national political and economic forces. The legislation is
allowing the criminal justice system to target a few perpetrators – and often
they are not the most serious offenders, but just the easiest to successfully
convict. This is putting the cart before the horse. Violence does not, by and
large, spring ready-made from people’s evil thoughts, but from the larger
conditions – and these are not being addressed. There is an urgent need for
government – nationally and locally – to consider the implications of austerity
measures, industrial and services closures, the enforced moving of populations
and cuts in welfare to social issues such as racial violence.

In
the twenty years since Stephen Lawrence’s killing, we have seen over one
hundred deaths from racial violence in the UK. That is a terrible indictment.’

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When sending me comments for publication on this blog, please note that I will not publish comments that are anonymous or otherwise hide the identity of the sender (at least an e-mail address or on-line blog identity must be supplied).

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